Smith v. Midcoast Inv. Co.

• Citation: 173 So. 348,127 Fla. 455
• Parties: SMITH v. MIDCOAST INV. CO.
• Decision Date: 16 March 1937
• Court: United States State Supreme Court of Florida

173 So. 348

127 Fla. 455

SMITH v. MIDCOAST INV. CO.

Florida Supreme Court

March 16, 1937

Suit by the Midcoast Investment Company against S. V. Smith and another, wherein a decree pro confesso was entered against defendant First National Bank of Gainesville. From a final decree for complainant, named defendant appeals.

Affirmed. Appeal from Circuit Court, Pinellas County John I. Viney, judge.

COUNSEL

Clair A. Davis and Lambdin & Ramseur, all of St. Petersburg, for appellant.

Byron M. Skelton and Charles J. Schuh, both of St. Petersburg, for appellee.

OPINION

BUFORD Justice.

The appeal brings for review final decree of foreclosure of a mortgage.

The first, second, and third questions challenge the correctness of the order of the lower court appointing a receiver of the mortgaged property.

Since the appeal is from the final decree, which must be affirmed no useful purpose could be served by discussing the contentions presented in these questions.

The fourth question challenges the correctness of the action of the chancellor in allowing the cause to proceed to final hearing over objection of defendant prior to the expiration of the time permitted codefendant against which decree pro confesso had been entered to further plead. The codefendant referred to is First National Bank of Gainesville, Fla.

The record does not show any attempt on the part of the codefendant to participate in this litigation after the entry of decree pro confesso. Therefore, if error was committed the record fails to show wherein it was harmful to the appellant here.

The same conclusion applies to the fifth question.

The sixth question challenges the right of the complainant to foreclose the notes to enforce payment of the mortgage. The record shows, as was held by the chancellor, that the title to the ownership of the notes passed to Midcoast Investment Company. In Jones v. Central Hanover Bank & Trust Company, 110 Fla. 69, 147 So. 895, we held:

'Title or interest of holder of commercial paper cannot be disputed unless necessary for purpose of legitimate defense.

'Maker of commercial paper cannot defend on ground that indorsee is not bona fide holder for value, unless maker asserts defense good against original payee.'

The seventh question challenges the action of the court in receiving in evidence certain notes which bore certain indorsements on the back thereof when the copies of notes attached to the bill of complaint did not show the indorsements on the reverse side thereof. It is contended that there was a variance between the notes offered in evidence and the copies attached to the bill of complaint. In Lee v. Patten, 34 Fla. 149, 15 So. 775, it was held:

'Where a written instrument, offered in evidence by a complainant in a bill, contains enough to sustain the material substance of a pertinent allegation of the bill in reference to it, it is admissible to sustain such allegation, even though such instrument varies, on its face, in an immaterial particular, from the description of it given in such bill.'

When the notes involved in this case were offered in evidence after hearing argument as to the admissibility of the same, the chancellor held:

'The notes in question are admitted in evidence for the purpose of showing the original transaction between the parties. The endorsements thereon are not at the present time being considered by the court.'

The eighth, ninth, and tenth questions are framed as follows:

'Eighth Question. Where failure of legal consideration for the notes and mortgage in suit is set up by defendant (mortgagor) in a sworn answer, is a check paid by mortgagee to a third party, a stranger to the suit, chargeable as and does the same constitute sufficient consideration for the notes and mortgage upon the bare oral testimony of the mortgagee's agent wholly uncorroborated and unsupported by any other testamentary or documentary evidence that the same was paid to satisfy an outstanding mortgage against the property involved and the existence of any such outstanding mortgage or mortgage indebtedness is denied by defendant in his testimony?

'Ninth Question. Where a sworn answer setting up failure of consideration and charging usury is interposed to the foreclosure of a first mortgage and at trial plaintiff, in its attempted proof as to consideration, introduces evidence of various payments constituting part consideration of the first mortgage being foreclosed and also a second mortgage owned by a third party and made by defendant at a later date without specifying which payments apply to each mortgage; is defendant entitled, upon application, to...